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Cultural objections 2

Pandora's Box in Greek mythology, taken from the myth of Pandora's creation in Hesiod's Works and Days, was a large jar given to Pandora which contained all the evils of the world. This summer an artefact was sold that had been the subject of a gift almost 135 years ago. The sale will be viewed as a success by the parties who will now share the proceeds of the sale, but like the opening of Pandora ’s Box the consequences of that act may yet turn out to be seriously difficult and have widespread repercussions.

In May 2013 Spencer Compton, 7th Marquess of Northampton, challenged the decision of Northampton Borough Council (the Council) to put up for sale a statue, sculpted around 2400BC, of an Egyptian official called Sekhemka. The basis of the Marquess’ challenge appears to have been that under the terms of a deed executed in 1880 his ancestor the 4th Marquess had granted his collection including the statue to the Mayor, Aldermen and Burgesses of Northampton (“the Corporation”), later statutorily re-established as the Council,:

“…on condition that … the Corporation… for ever hereafter exhibit the same freely to the Public…and at no time dispose of any part…in default whereof at any time the said collection shall revert and be restored to the Marquis his heirs or assigns…or be disposed of as he may direct…”

The Council seems to taken the view that the gift of the statue, which was not specifically mentioned in the deed of grant, was an absolute gift and that the Council had the freedom to deaccession it, if that was what the Council wanted to do.

The negotiation that followed has not been made public nor has it been commented on by either the Council or the Marquess. However, the deed mentions “a collection of Egyptian Antiquities including four framed specimens of wall painting and papyrus and other objects” and it seems likely that the Council was persuaded that that the Marquess was in a position to force them to pull the sale. In April 2014 the Art Newspaper reported that a deal had been reached to split the proceeds of the sale, with the Marquess receiving 45% and the Council receiving 55%.

Gifts on condition are governed by old case law which generally places the donor at a disadvantage. It has been said that it “is repugnant to the essential nature of an absolute gift to attempt to deny the new owner the fundamental attributes of ownership”.1 It was due to this repugnance that in a case decided in 1888 a gift over in favour of a donee’s wife and children (should the donee “deprive himself of the benefit” of the gift) failed and the donee was deemed to take the gifted property absolutely.2 However, throughout the nineteenth century it was possible, by using appropriate language in a deed of grant, to limit the ownership of personal assets and similarly the ownership of land. It was possible to give away an artefact upon a condition which might cut the gift short. If an act forbidden by the condition took place then the original grantor or his heir had the right to determine the existing interest and resume ownership.

This type of condition is sometimes called a condition subsequent. Such a condition is void unless it can be seen precisely and distinctly from the moment of its creation what events will cause a right of forfeiture. It is also void insofar as it takes away the right of the donee to dispose of the gift and it cannot be on terms that are contrary to public policy.

Under a rule developed by the English courts in the seventeenth century, the rule against remoteness, a future interest in land, such as might arise if given on a condition subsequent, was void unless at the outset it could be seen that the future interest was absolutely certain to vest, if at all, not later than twenty-one years after the death of the last surviving causally relevant life at the time the gift was made.3 It was necessary to identify a person to whom the interest in the land would ultimately pass within that period. It did not matter if the land concerned would not come into the possession of that person until a time after that period had ended. The rule has since been confirmed by statute, but gifts of personal property were made on condition subsequent before the seventeenth century and it seems the cases never brought personal property within the rule.4

In 1964 the law was changed and deeds that contain ‘possibilities of reverter, conditions subsequent, exceptions and reservations’ both in respect of land and personal property were brought within the rule.5The law has since been changed again with the introduction of a universal rule that limitations on gifts made since 6 April 2010 are subject to a statutory period of 125 years.6

It seems likely that the 4th Marquess was successful in his opposition to the sale of Sekhuma because it might have been the subject of valid limited gift and if the Council had deaccessioned it the statue might not have been the Council’s to sell. In that case issues of conversion would have arisen had the auction gone ahead.

On 10 July 2014 Sekhemka was sold at auction in London by Christies for a record-breaking £15.8m. There ensued both comment and criticism from the Arts Council, Museums Association, Egyptian Government and local stakeholders that the Council had contravened ethical standards by selling the statue. The Egyptian Government had even entered into last minute talks with Christies in an attempt to delay the sale. The Museums Association stated that the Council’s plans to share the proceeds of the sale indicated that legal title to the object had not been resolved. (The Museums Association was contacted on 15 July 2014 for further information regarding this statement). However, the split seems unlikely to have been agreed without (amongst other things) the benefit of professional advice on the issue of title and the tax effect of what was agreed.

On 1 August 2014 the Arts Council ruled that the process leading to the sale of Sekhemka contravened museum accreditation standards. Two museums managed by the Council, The Northampton Museum and Art Gallery and Abington Park Museum have been removed from the Accreditation Scheme and will be excluded from all future participation for a minimum period of five years, until at least August 2019.

Scott Furlong, director of the acquisitions, exports and loans unit at the Arts Council said: “It is always hugely regrettable when we have to exclude a museum from the Accreditation Scheme.

“However, it is equally important that we are robust in upholding the standards and principles which underpin the scheme and are shared by the vast majority of museums.”

“I am confident that the museums sector and wider community will share our dismay at the way this sale has been conducted and support the decision to remove Northampton Museums Service from the scheme.

“It is of great importance that the public retain their trust in museums to look after the collections held in their name. “There is a very real risk that this trust, and particularly that of potential donors and funders, will be seriously undermined if disposals from public collections are seen to be driven by financial considerations and in breach of our professional standards and ethical code.”

The Council is considering appealing the decision.

Public collections which are constituted and governed by statute such as the British Museum (British Museum Act 1963) and the National Gallery, the Tate Gallery, the National Portrait Gallery and the Wallace Collection (Museums and Galleries Act 1992) are prevented from deaccessioning pieces from their collections under legislation. In contrast, elected local authorities are empowered to deaccession items as they consider necessary, subject to the ethical code of the Museums Association. In 2007 this code was itself relaxed and has precipitated an increase in the number of local authorities wishing to exercise this power. Loss of accreditation will result in the two museums being ineligible for a wide range of grant funding options.

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